Nixon/trump: Strategies of Judicial Aggrandizement

ESSAY
Nixon/Trump: Strategies of Judicial
Aggrandizement
JOSH CHAFETZ*
In Trump v. Vance and Trump v. Mazars, the Supreme Court applied
very different standards for subpoenas issued for the personal papers of
the president, making it easier for a grand jury to acquire such materials
than a congressional committee. The two opinions, both authored by
Chief Justice Roberts, have been widely praised for suggesting that the
president is not wholly above the law; indeed, they have been treated as
the second coming of the Nixon Tapes Case.
This Essay argues that while the Trump subpoena cases do have an im-
portant kinship with the cases concerning access to White House tapes dur-
ing Watergate, this similarity is not quite as f‌lattering as commentators
imagine. What the cases surrounding access to Donald Trump’s f‌inancial
records and the cases surrounding access to Richard Nixon’s White House
tapes have in common above all else is a project of judicial self-empowerment
at Congress’s expense. What distinguishes them, on the other hand, is the im-
mediate result of the two sets of cases: whereas the Nixon Court acted to
push a lawless president out of off‌ice, the Trump Court acted to ensure that
the information sought by other institutional actors could not have electoral
consequences for another lawless president.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
I. CONGRESS DOWN, JUDGES UP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
A. THE NIXON CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
B. THE TRUMP CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
II. A PRESIDENT OUSTED, A PRESIDENT PROTECTED . . . . . . . . . . . . . . . . . . . . 144
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
* Professor of Law, Georgetown University Law Center. © 2021, Josh Chafetz. Thanks to Dan
Farber, Jon Gould, David Pozen, Catherine Roach, Michael Stern, Yvonne Tew, Justin Zaremby, the
editors of The Georgetown Law Journal, and the participants in the Berkeley Public Law & Public
Policy Workshop for helpful and thought-provoking comments and suggestions. Any remaining errors
or infelicities are, of course, my own.
125
INTRODUCTION
On the f‌inal day of its 2019 Term, the Supreme Court decided two landmark
cases regarding access by other governing institutions to the personal papers of
the president. In Trump v. Vance, the Court held both that there is no constitu-
tional bar on a state grand jury’s subpoena for a president’s f‌inancial records and
that there is no heightened standard for the issuance of such a subpoena.
1
Writing
for the Court, Chief Justice Roberts insisted that, “Two hundred years ago, a great
jurist of our Court [Chief Justice Marshall in the Aaron Burr treason trial] estab-
lished that no citizen, not even the President, is categorically above the common
duty to produce evidence when called upon in a criminal proceeding. We reaff‌irm
that principle today ....”
2
In Trump v. Mazars USA, LLP, the Court faced subpoenas for nearly the same
material as in Vance, but here the subpoenas had been issued by three congres-
sional committees.
3
In Mazars, the Court—again, per the Chief Justice—applied
a much more demanding standard, insisting that “signif‌icant separation of powers
issues [are] raised by congressional subpoenas for the President’s information.
Congress and the President have an ongoing institutional relationship as the ‘op-
posite and rival’ political branches established by the Constitution.”
4
As a result,
congressional subpoenas for presidential information are subject to higher stand-
ards than congressional subpoenas for information relating to other individuals.
In addition to the “valid legislative purpose” requirement that the Court has
applied to all congressional subpoenas,
5
the Court in Mazars enumerated four
nebulous (and non-exclusive) factors to be considered in weighing the permissi-
bility of congressional subpoenas specif‌ically for presidential materials.
6
Immediate reaction to the decisions was largely adulatory: the New York Times
splashed a six-column headline across the front page, reading, “President Is Not
‘Above the Law,’ Justices Decide.”
7
The Washington Post’s headline announced,
“Justices Reject Trump’s Immunity Claims.”
8
Legal elites took much the same
1. 140 S. Ct. 2412 (2020).
2. Id. at 2431 (citing United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807)).
3. 140 S. Ct. 2019 (2020).
4. Id. at 2033–34 (quoting THE FEDERALIST NO. 51, at 349 (James Madison) (Jacob E. Cooke ed.,
1961)).
5. See id. at 2031–32 (quoting Quinn v. United States, 349 U.S. 155, 161 (1955)).
6. Id. at 2035–36. There is some irony in this multi-factor analysis being announced by a justice who,
only days earlier, had strongly criticized such tests. See June Med. Servs. L. L. C. v. Russo, 140 S. Ct.
2103, 2136 (2020) (Roberts, C.J., concurring in the judgment) (“There is no plausible sense in which
anyone, let alone this Court, could objectively assign weight to such imponderable values and no
meaningful way to compare them if there were. Attempting to do so would be like ‘judging whether a
particular line is longer than a particular rock is heavy.’ Pretending that we could pull that off would
require us to act as legislators, not judges, and would result in nothing other than an ‘unanalyzed
exercise of judicial will’ in the guise of a ‘neutral utilitarian calculus.’” (citations omitted)).
7. Adam Liptak, President Is Not ‘Above the Law,’ Justices Decide: Court Backs a Subpoena on
Trump’s Tax Records, With Some Limits, N.Y. TIMES, July 10, 2020, at A1.
8. Robert Barnes, Justices Reject Trump’s Immunity Claims, WASH. POST, July 10, 2020, at A1.
126 THE GEORGETOWN LAW JOURNAL [Vol. 110:125

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